Marveita Redding and Nickolas Facaros, May 2, 1989

DAVE ~ROHNMA YER
'ATTORNEY GENERAL
STATE OF OREGON
Marveita Redding
DEPARTMENT OF JUSTICE
Justice Building
Salem, Oregon 97310
Telephone: (503) 378-4400
May 2, 1989
Executive Assistant to the Director
Oregon Department of Agriculture
635 capitol Street, NE
Salem, OR 97310-0110
Nickolas Facaros
2592 Friendly Street
Eugene, OR 97405
Re: Petition for Public Records Disclosure Order:
Oregon Department of Agriculture Records
Dear Ms. Redding and Mr. Facaros:
JAMES E. MOUNTAIN, JR.
DEPUTY ATTO''~JF.Y GENERAL
This letter is the Attorney General's order on Mr. Facaros'
petition for disclosure of records under the Oregon Public
Records Law, ORS 192.410 to 192.505. The petition, which we
received on April 21, 1989,1 asks the Attorney General to
direct the Oregon Department of Agriculture (department) to
disclose •all records contained in a file on the fungicide Tilt
that has within it and among others the appended records.• The
appended records referred to are: (1) a state telephone
message form dated 10/20 (no year indicated) to Chris (no last
name indicated) from Gary Orr of Ciba-Geigi Company; (2) a
letter dated November 22, 1988, from state Senator Mae Yih to
United States Senator Mark Hatfield concerning the seizure of
grass seed pellets; and (3) a page of unidentified handwritten
notes containing columns of figures. Mr. Facaros obtained the
appended records under his request for the department's records
on the use of fungicides on grass seed crops. For the reasons
stated below, we grant the petition in part, and deny it in
part.
The Public Records Law confers a right to inspect public
records of a public body in Oregon, subject to certain excep­tions.
ORS 192.420. If a public record contains material that
is exempt from disclosure together with nonexempt material,
Marveita Redding and Nickolas Facaros
May 2, 1989
Page 2
the public body must separate the materials and make the non­exempt
material available for examination if it is reasonably
possible to do so while preserving the confidentiality of the
exempt material. ORS 192.505: Turner v. Reed, 22 Or App 177,
186 n 8, 538 P2d 373 (1975).
We have reviewed the files containing the documents to
which Mr. Facaros refers. We conclude that some of the
requested records contain information that is exempt from
disclosure under ORS 192.502(7).
1. Disclosure Prohibited by Federal Law
ORS 192.502(7) exempts from disclosure •any public records
or information the disclosure of which is prohibited by federal
law or regulations.• Under this provision, a public record is
exempt from disclosure if federal law prohibits its disclosure.
we have reviewed the department records in question. One of
the records contains documents the department received from the
federal Food and Drug Administration (FDA) concerning an FDA
investigation of a violation of 21 usc § 33l(a). That statute
prohibits the introduction or delivery into interstate commerce
of any food that is adulterated or misbranded. Violators are
subject to a fine, imprisonment or both. 21 usc§ 333(a). The
documents include FDA investigation reports, an internal FDA
memorandum concerning the investigation, a federal prosecutor's
letter concerning the investigation, and copies of pleadings
filed in federal district court.
21 CFR §§ 20.1 to 20.119 (1987) govern disclosure of FDA
records. Section 20.84 provides:
•Data and information otherwise exempt from
public disclosure may be disclosed to Food and Drug
Administration consultants, advisory committees,
state and local government officials commissioned
pursuant to 21 usc 372(a) and other special government
employees for use only in their work with the Food
and Drug Administration. Such persons are thereafter
subject to the same restrictions with respect to the
disclosure of such data and information as any other
Food and Drug Administration employee.•
The oregon Department of Agriculture is commissioned under
21 usc § 372. Hence, the department is subject to the same
restrictions on disclosure of the FDA documents at issue here
as the FDA would be.
Marveita Redding and Nickolas Facaros
May 2, 1989
Page 3
21 CFR S 20.64(d)(l) governs disclosure of FDA law
enforcement investigation records. It provides in relevant
part:
•No such record is available for public
disclosure prior to the consideration of regulatory
enforcement action based upon that record's being
closed, except as provided in §20.82 [limited
discretionary disclosure by the FDA Commissioner].
The Commissioner will exercise his discretion to
disclose records relating to possible criminal
prosecution pursuant to §20.82 prior to considera­tion
of criminal prosecution being closed only very
rarely and only under circumstances that demonstrate
a compelling public interest.•
This provision and 21 CFR S 20.84, read together, prohibit
disclosure of FDA law enforcement records contained in the
department's files until the federal case is closed or until
the FDA Commissioner authorizes their disclosure under 21
CFR S 20.84.
The federal prosecutor handling the case to which the FDA
documents pertain informs us that prosecution is still pending.
To our knowledge, the FDA Commissioner has not authorized
disclosure of the information under 21 CFR S 21.64(d)(l). We
conclude, therefore, that federal law prohibits disclosure of
the FDA investigation reports, the FDA internal memorandum and
the federal prosecutor's letter. Consequently, those records
are exempt from disclosure under ORS 192.502(7).
Copies of the federal district court pleadings are not
part of the FDA law enforcement investigation records. we are
aware of no federal provision that prohibits their disclosure.
Nor are they exempt from disclosure under any other state law.
The department, therefore, must allow Mr. Facaros to inspect
those pleadings.
2. Trade Secrets
Also included in the records we reviewed is a packet of
materials pertaining to the •Mini Modified Luke Method.• This
is a laboratory method for determining Tilt levels in feed
pellets. The department withheld these documents on April 19,
1989, because department staff handling Mr. Facaros' request
believed that the method had been derived from trade secret
information supplied by a chemical manufacturer. ORS 192.501(2)
exempts trade secrets from disclosure unless the public interest
requires disclosure in a particular instance.
Marveita Redding and Nickolas Facaros
May 2, 1989
Page 4
The administrator of the department's Lab Services Division
informs us that the staff's understanding was mistaken. The
department obtained the Mini Modified Luke Method from the
FDA's Laboratory Information Bulletin. Although the bulletin
is not publicly circulated, no state or federal law exempts the
bulletin from disclosure. The department, therefore, must
allow Mr. Facaros to inspect records concerning the Mini
Modified Luke Method.
3. Supplemental Petition
On April 26, 1989, Mr. Facaros filed an addendum to his
April 21, 1989, petition. In the addendum he requested:
•2. All records regarding enforcement actions
on or about Oct. 14, 1988, relating to Tilt residues,
whereby Hersh Pendell called seven separate pellet
mills, requesting that shipments of certain grass
seed products or by-products be halted (These records
are possibly within Pendell's files);
•3. 'Sampling data' (time collected and
analyzed, business/place sample taken from, commodity
sampled, and level of Tilt residues found) upon which
action noted in item 2, supra, was based (Records
disclosed so far show prior sampling for Tilt was
conducted 10 months earlier, which doesn't make
sense);
•4. 'Sampling data' for samples 2732 and 2741,
if related to Tilt residues;
•s. 'Sampling data' showing Tilt residues at
8 parts per million (referred to in Pendell's Oct. 27,
1988, interoffice memo to Kirby; and
•6. Records showing hourly wage of each person
who searched for records for whose search time I have
been charged.•
we have reviewed department files and find that they
contain none of the records Mr. Facaros requests in paragraphs
2, 3, 4 and 5 of his addendum. The department informs us that
it took no enforcement action on or about October 14, 1988.
Consequently, no sampling was done and no records exist.
The department already has provided Mr. Facaros with a
copy of the laboratory form for Sample 2732. It is the only
Marveita Redding and Nickolas Facaros
May 2, 1989
Page 5
•sampling data• included in the records. The form for Sample
2741 concerns filbert hulls. It is not contained in any grass
seed file. Because Mr. Facaros requested only grass seed
records, the department did not disclose this form.
The department informs us that there is no laboratory
report showing Tilt residues at 8 parts per million (ppm).
That result was an unrecorded preliminary laboratory result.
The final laboratory result was 5.8 ppm. It appears on the
October 27, 1988, memorandum from Dr. Michael Wehr to Dr.
William Wright. The department has previously given Mr.
Facaros this document.
The department has compiled the requested information on
the hourly wage for each person who searched for records and
intends to send the information to Mr. Facaros this week.
4. Conclusion
The FDA law enforcement investigatory records Mr. Facaros
has requested are prohibited from disclosure under federal law
and, therefore, exempt from disclosure ORS 192.502(7). Other
records he has requested do not exist, or already have been
disclosed. Accordingly, we deny the part of Mr. Facaros'
petition relating to these records.
Copies of the FDA's federal district court pleadings, and
materials on the Mini Modified Luke Method, which the department
previously withheld, must be disclosed. The department also
must disclose records on the hourly wage of persons for whose
time in searching for records Mr. Facaros has been billed. The
Attorney General, therefore, grants the petition in part. The
department must separate the exempt and nonexempt materials
and make the nonexempt material available for inspection.
ORS 192.505. Department of Justice attorneys will work with
the Department of Agriculture staff to identify the portions of
the records that may be excised. ORS 192.450(2) affords the
Department of Agriculture seven days from the date of this order
in which to comply.
The department may require Mr. Facaros to pay its actual
costs in making the records available, including staff time
necessary to locate documents and provide disclosure.
ORS 192.440(2); 44 Op Atty Ge .. 239, 241 (1984) (Attorney
General's Public Records and Meetings Manual).
Marveita Redding and Nickolas Facaros
May 2, 1989
Page 6
Under OAR 603-01-145(3), the Department of Agriculture requires
that a requestor pay applicable fees before or at the time
department records are furnished. The department informs us
that Mr. Facaros has not yet paid the applicable fees for
records already provided to him. The department may withhold
the records required to be released under this order until Mr.
Facaros pays all applicable fees.
PLA:MLB:tmt
ros/5749G
lwe appreciate Mr. Facaros' courtesy in allowing us to
exceed the seven-day deadline for issuing public records orders.

Click tabs to swap between content that is broken into logical sections.

DAVE ~ROHNMA YER
'ATTORNEY GENERAL
STATE OF OREGON
Marveita Redding
DEPARTMENT OF JUSTICE
Justice Building
Salem, Oregon 97310
Telephone: (503) 378-4400
May 2, 1989
Executive Assistant to the Director
Oregon Department of Agriculture
635 capitol Street, NE
Salem, OR 97310-0110
Nickolas Facaros
2592 Friendly Street
Eugene, OR 97405
Re: Petition for Public Records Disclosure Order:
Oregon Department of Agriculture Records
Dear Ms. Redding and Mr. Facaros:
JAMES E. MOUNTAIN, JR.
DEPUTY ATTO''~JF.Y GENERAL
This letter is the Attorney General's order on Mr. Facaros'
petition for disclosure of records under the Oregon Public
Records Law, ORS 192.410 to 192.505. The petition, which we
received on April 21, 1989,1 asks the Attorney General to
direct the Oregon Department of Agriculture (department) to
disclose •all records contained in a file on the fungicide Tilt
that has within it and among others the appended records.• The
appended records referred to are: (1) a state telephone
message form dated 10/20 (no year indicated) to Chris (no last
name indicated) from Gary Orr of Ciba-Geigi Company; (2) a
letter dated November 22, 1988, from state Senator Mae Yih to
United States Senator Mark Hatfield concerning the seizure of
grass seed pellets; and (3) a page of unidentified handwritten
notes containing columns of figures. Mr. Facaros obtained the
appended records under his request for the department's records
on the use of fungicides on grass seed crops. For the reasons
stated below, we grant the petition in part, and deny it in
part.
The Public Records Law confers a right to inspect public
records of a public body in Oregon, subject to certain excep­tions.
ORS 192.420. If a public record contains material that
is exempt from disclosure together with nonexempt material,
Marveita Redding and Nickolas Facaros
May 2, 1989
Page 2
the public body must separate the materials and make the non­exempt
material available for examination if it is reasonably
possible to do so while preserving the confidentiality of the
exempt material. ORS 192.505: Turner v. Reed, 22 Or App 177,
186 n 8, 538 P2d 373 (1975).
We have reviewed the files containing the documents to
which Mr. Facaros refers. We conclude that some of the
requested records contain information that is exempt from
disclosure under ORS 192.502(7).
1. Disclosure Prohibited by Federal Law
ORS 192.502(7) exempts from disclosure •any public records
or information the disclosure of which is prohibited by federal
law or regulations.• Under this provision, a public record is
exempt from disclosure if federal law prohibits its disclosure.
we have reviewed the department records in question. One of
the records contains documents the department received from the
federal Food and Drug Administration (FDA) concerning an FDA
investigation of a violation of 21 usc § 33l(a). That statute
prohibits the introduction or delivery into interstate commerce
of any food that is adulterated or misbranded. Violators are
subject to a fine, imprisonment or both. 21 usc§ 333(a). The
documents include FDA investigation reports, an internal FDA
memorandum concerning the investigation, a federal prosecutor's
letter concerning the investigation, and copies of pleadings
filed in federal district court.
21 CFR §§ 20.1 to 20.119 (1987) govern disclosure of FDA
records. Section 20.84 provides:
•Data and information otherwise exempt from
public disclosure may be disclosed to Food and Drug
Administration consultants, advisory committees,
state and local government officials commissioned
pursuant to 21 usc 372(a) and other special government
employees for use only in their work with the Food
and Drug Administration. Such persons are thereafter
subject to the same restrictions with respect to the
disclosure of such data and information as any other
Food and Drug Administration employee.•
The oregon Department of Agriculture is commissioned under
21 usc § 372. Hence, the department is subject to the same
restrictions on disclosure of the FDA documents at issue here
as the FDA would be.
Marveita Redding and Nickolas Facaros
May 2, 1989
Page 3
21 CFR S 20.64(d)(l) governs disclosure of FDA law
enforcement investigation records. It provides in relevant
part:
•No such record is available for public
disclosure prior to the consideration of regulatory
enforcement action based upon that record's being
closed, except as provided in §20.82 [limited
discretionary disclosure by the FDA Commissioner].
The Commissioner will exercise his discretion to
disclose records relating to possible criminal
prosecution pursuant to §20.82 prior to considera­tion
of criminal prosecution being closed only very
rarely and only under circumstances that demonstrate
a compelling public interest.•
This provision and 21 CFR S 20.84, read together, prohibit
disclosure of FDA law enforcement records contained in the
department's files until the federal case is closed or until
the FDA Commissioner authorizes their disclosure under 21
CFR S 20.84.
The federal prosecutor handling the case to which the FDA
documents pertain informs us that prosecution is still pending.
To our knowledge, the FDA Commissioner has not authorized
disclosure of the information under 21 CFR S 21.64(d)(l). We
conclude, therefore, that federal law prohibits disclosure of
the FDA investigation reports, the FDA internal memorandum and
the federal prosecutor's letter. Consequently, those records
are exempt from disclosure under ORS 192.502(7).
Copies of the federal district court pleadings are not
part of the FDA law enforcement investigation records. we are
aware of no federal provision that prohibits their disclosure.
Nor are they exempt from disclosure under any other state law.
The department, therefore, must allow Mr. Facaros to inspect
those pleadings.
2. Trade Secrets
Also included in the records we reviewed is a packet of
materials pertaining to the •Mini Modified Luke Method.• This
is a laboratory method for determining Tilt levels in feed
pellets. The department withheld these documents on April 19,
1989, because department staff handling Mr. Facaros' request
believed that the method had been derived from trade secret
information supplied by a chemical manufacturer. ORS 192.501(2)
exempts trade secrets from disclosure unless the public interest
requires disclosure in a particular instance.
Marveita Redding and Nickolas Facaros
May 2, 1989
Page 4
The administrator of the department's Lab Services Division
informs us that the staff's understanding was mistaken. The
department obtained the Mini Modified Luke Method from the
FDA's Laboratory Information Bulletin. Although the bulletin
is not publicly circulated, no state or federal law exempts the
bulletin from disclosure. The department, therefore, must
allow Mr. Facaros to inspect records concerning the Mini
Modified Luke Method.
3. Supplemental Petition
On April 26, 1989, Mr. Facaros filed an addendum to his
April 21, 1989, petition. In the addendum he requested:
•2. All records regarding enforcement actions
on or about Oct. 14, 1988, relating to Tilt residues,
whereby Hersh Pendell called seven separate pellet
mills, requesting that shipments of certain grass
seed products or by-products be halted (These records
are possibly within Pendell's files);
•3. 'Sampling data' (time collected and
analyzed, business/place sample taken from, commodity
sampled, and level of Tilt residues found) upon which
action noted in item 2, supra, was based (Records
disclosed so far show prior sampling for Tilt was
conducted 10 months earlier, which doesn't make
sense);
•4. 'Sampling data' for samples 2732 and 2741,
if related to Tilt residues;
•s. 'Sampling data' showing Tilt residues at
8 parts per million (referred to in Pendell's Oct. 27,
1988, interoffice memo to Kirby; and
•6. Records showing hourly wage of each person
who searched for records for whose search time I have
been charged.•
we have reviewed department files and find that they
contain none of the records Mr. Facaros requests in paragraphs
2, 3, 4 and 5 of his addendum. The department informs us that
it took no enforcement action on or about October 14, 1988.
Consequently, no sampling was done and no records exist.
The department already has provided Mr. Facaros with a
copy of the laboratory form for Sample 2732. It is the only
Marveita Redding and Nickolas Facaros
May 2, 1989
Page 5
•sampling data• included in the records. The form for Sample
2741 concerns filbert hulls. It is not contained in any grass
seed file. Because Mr. Facaros requested only grass seed
records, the department did not disclose this form.
The department informs us that there is no laboratory
report showing Tilt residues at 8 parts per million (ppm).
That result was an unrecorded preliminary laboratory result.
The final laboratory result was 5.8 ppm. It appears on the
October 27, 1988, memorandum from Dr. Michael Wehr to Dr.
William Wright. The department has previously given Mr.
Facaros this document.
The department has compiled the requested information on
the hourly wage for each person who searched for records and
intends to send the information to Mr. Facaros this week.
4. Conclusion
The FDA law enforcement investigatory records Mr. Facaros
has requested are prohibited from disclosure under federal law
and, therefore, exempt from disclosure ORS 192.502(7). Other
records he has requested do not exist, or already have been
disclosed. Accordingly, we deny the part of Mr. Facaros'
petition relating to these records.
Copies of the FDA's federal district court pleadings, and
materials on the Mini Modified Luke Method, which the department
previously withheld, must be disclosed. The department also
must disclose records on the hourly wage of persons for whose
time in searching for records Mr. Facaros has been billed. The
Attorney General, therefore, grants the petition in part. The
department must separate the exempt and nonexempt materials
and make the nonexempt material available for inspection.
ORS 192.505. Department of Justice attorneys will work with
the Department of Agriculture staff to identify the portions of
the records that may be excised. ORS 192.450(2) affords the
Department of Agriculture seven days from the date of this order
in which to comply.
The department may require Mr. Facaros to pay its actual
costs in making the records available, including staff time
necessary to locate documents and provide disclosure.
ORS 192.440(2); 44 Op Atty Ge .. 239, 241 (1984) (Attorney
General's Public Records and Meetings Manual).
Marveita Redding and Nickolas Facaros
May 2, 1989
Page 6
Under OAR 603-01-145(3), the Department of Agriculture requires
that a requestor pay applicable fees before or at the time
department records are furnished. The department informs us
that Mr. Facaros has not yet paid the applicable fees for
records already provided to him. The department may withhold
the records required to be released under this order until Mr.
Facaros pays all applicable fees.
PLA:MLB:tmt
ros/5749G
lwe appreciate Mr. Facaros' courtesy in allowing us to
exceed the seven-day deadline for issuing public records orders.